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The relative fairness of monthly detention reviews for immigration detainees was called into question Thursday in a testy exchange between the lawyers for a West African man who has been in maximum-security jail without charge for nearly four-and-a-half years and an Immigration and Refugee Board member.

Jared Will, who is representing Ebrahim Toure — a failed refugee claimant who has been behind bars since February 2013 because the government has been unable to deport him — objected to the fact that the government’s representative, who acts as a kind of prosecutor at the quasi-judicial hearing, had not disclosed evidence cited to justify Toure’s continued detention.

Suzy Kim, the board member hearing the case, appeared to be taken aback by Will’s objection.

Kim said the government’s oral submissions are regularly accepted as evidence in detention reviews, which are intended to be less formal than court proceedings.

Kim asked whether Will had disclosed the notes he had in front of him, for instance.

Decisions in detention reviews are typically made immediately following a hearing, but on Thursday Kim said she would deliver her decision in writing within a “reasonable” time frame.

Prior to the hearing Will — who is also in the midst of a Federal Court challenge to the entire immigration detention system — had made formal requests to have Toure’s removals officer cross-examined at the hearing and for the officer to disclose his notes. Both requests were denied.

“Mr. Toure is detained,” Will said at one point amid the heated back-and-forth. “He’s in a maximum-security jail and he has a heightened right to complete disclosure of any and all information.”

Kim said she saw no basis for the hearing to be used as a “fishing expedition.”

“I don’t need documentation from the minister to accept what the minister is saying about what has happened so far,” she said.

According to the rules of detention review hearings posted on Citizenship and Immigration Canada’s website, hearings officers are obliged to provide disclosure to the person being detained or their counsel.

But immigration lawyers previously interviewed by the Star said disclosure is routinely withheld from detainees and the government’s hearsay evidence is often accepted as fact at detention reviews, where government-appointed board members decide whether an immigration detainee should be released or jailed another 30 days.

As part of an investigation into Canada’s immigration detention system published earlier this year, the Star interviewed 15 immigration lawyers, all of whom criticized the detention review hearings as procedurally unfair and stacked in the government’s favour.

“You couldn’t walk into a criminal or civil court in this country that would not provide notes and documents upon which they were relying to make a decision,” said Macdonald Scott, an immigration consultant also on Toure’s legal team who spoke to the Star after the hearing. “This board seems to feel fit to do so and does so repeatedly.”

Toure’s lawyers have told the government that if he is not released they will be seeking a “habeas corpus” application in Superior Court — the same legal remedy with which they won the release of seven-year immigration detainee Kashif Ali in April.

“We will seek justice in a venue where they follow the law,” Scott said.

Toure, 46, says he is from The Gambia, where he was born to a Gambian father and Guinean mother. He came to Canada on a fake passport before applying for refugee status in his actual name. He says he has never had any legitimate identity documents. Because he can’t prove his citizenship, neither The Gambia nor Guinea will take him back.

The government accuses Toure of not co-operating with his removal. But Toure said he would like to be deported and he has given immigration officials everything he has. Immigration authorities have asked Toure to provide a DNA sample, which he has thus far refused because he said he doesn’t trust them.

The government’s representative said Thursday they need Toure to provide them with legitimate identification so they can obtain a travel document from Gambian authorities.

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